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{{org_field_name}}

Registration Number: {{org_field_registration_no}}

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Consent, Capacity and Refusal Policy

1. Purpose

The purpose of this Consent, Capacity and Refusal Policy is to ensure that all temporary workers supplied or engaged by {{org_field_name}}, including registered nurses, healthcare assistants, support workers and other healthcare or social care staff, understand their responsibilities when seeking, confirming, respecting and recording consent while working in client settings.

{{org_field_name}} operates as a temporary staffing agency/employment business and does not itself provide regulated care or treatment to service users. Responsibility for the regulated activity, care planning, clinical governance, consent procedures and CQC registration rests with the client organisation where the worker is assigned. Temporary workers must, however, act lawfully, safely and professionally when carrying out duties within the scope of an assignment and must follow the client organisation’s policies, care plans, risk assessments, delegation instructions and escalation procedures.

This policy supports lawful and person-centred practice in line with the Mental Capacity Act 2005, the Mental Capacity Act Code of Practice, the Human Rights Act 1998, the Equality Act 2010, UK GDPR and the Data Protection Act 2018, and relevant professional standards including the Nursing and Midwifery Council Code where applicable. Where temporary workers are assigned to CQC-regulated providers, they must support the client organisation to comply with applicable requirements, including Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires care and treatment to be provided only with the consent of the relevant person, unless another lawful basis applies.

2. Scope

This policy applies to:

• all temporary workers, agency workers, casual workers, zero-hours workers and staff supplied or engaged by {{org_field_name}};
• registered nurses, nursing associates, healthcare assistants, support workers and any other workers assigned to health or social care environments;
• office staff, consultants, coordinators, managers and directors involved in recruitment, placement, compliance, supervision, incident management or worker support;
• assignments in client settings, including nursing homes, residential care homes, supported living services, hospitals, clinics, community settings and other health or social care environments;
• situations where a temporary worker is asked to provide, assist with or support personal care, clinical care, medication, nutrition, hydration, mobility, observations, communication, documentation or other care-related activities under the direction of the client organisation.

This policy does not make {{org_field_name}} a provider of regulated care or treatment. Temporary workers must work only within their competence, role, assignment terms, professional registration, client instructions and applicable care plans.

3. Related Policies

• Safeguarding Adults and Children Policy
• Record Keeping and Confidentiality Policy
• Code of Conduct for Temporary Workers
• Complaints Policy
• Incident Reporting and Management Policy
• Equality, Diversity and Inclusion Policy

• Mental Capacity Act and Best Interests Policy
• Deprivation of Liberty Safeguards Policy, where applicable to client settings
• Medication Policy, where workers are assigned to medication-related duties
• Whistleblowing Policy
• Data Protection and Information Governance Policy
• Recruitment, Selection and Suitability Policy
• Assignment and Client Placement Policy
• Professional Boundaries Policy

4. Definition of Consent

Consent is the voluntary agreement of an individual to receive care, treatment, or intervention.

Consent must be obtained before the relevant care, treatment or intervention takes place. Consent is not a one-off event; it is an ongoing process. A person may give consent, refuse consent or withdraw consent at any time.

Consent must be:

• voluntary: given freely, without pressure, coercion, manipulation, intimidation or undue influence;
• informed: based on clear information about the nature, purpose, likely benefits, material risks and available alternatives, appropriate to the worker’s role and the client organisation’s procedures;
• specific: linked to the particular care, treatment or intervention being proposed at that time;
• given by a person with capacity, or by a person lawfully authorised to act on the individual’s behalf, where the law permits this;
• communicated clearly, whether verbally, non-verbally, in writing or through another recognised communication method.

Temporary workers must not assume that a person has consented merely because a task appears routine, because the person has previously accepted similar care, or because the care plan states that the task is required. Workers must still check that the person is willing to proceed at the time of the intervention.

Consent may be expressed:

• Verbally (spoken agreement)
• Non-verbally (by gestures or cooperation)
• In writing (usually in the case of invasive procedures, clinical treatments, or where required by the client organisation)

Consent applies to all levels of care, including routine personal care tasks, such as helping with dressing, eating, or mobility, as well as clinical procedures.

5. Legal Framework

This policy is underpinned by the following legislation, regulations, statutory guidance and professional standards, where applicable:

• Mental Capacity Act 2005, including the statutory principles, decision-specific capacity assessments, best interests decision-making, acts in connection with care or treatment, advance decisions, Lasting Powers of Attorney and Court of Protection deputies;
• Mental Capacity Act 2005 Code of Practice, which must be considered by people working with or caring for adults who may lack capacity;
• Human Rights Act 1998, including respect for dignity, autonomy, privacy and family life;
• Equality Act 2010, including the duty to avoid discrimination and to make reasonable adjustments for disabled people;
• UK GDPR and the Data Protection Act 2018, including lawful, fair and transparent processing, data minimisation, confidentiality, security and appropriate handling of special category data;
• Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 11, where workers are assigned to a CQC-regulated client setting;
• CQC Fundamental Standards and the client organisation’s CQC-related procedures, where applicable to the client organisation;
• Nursing and Midwifery Council Code, for registered nurses, midwives and nursing associates;
• Family Law Reform Act 1969 and relevant common law principles on consent by children and young people, where assignments involve people under 18.

5.1 Status of {{org_field_name}} as a Temporary Staffing Agency

{{org_field_name}} supplies temporary workers to client organisations. It does not directly assess, plan, provide, manage or review regulated care or treatment for service users and does not hold itself out as the provider of a regulated activity requiring CQC registration.

The client organisation remains responsible for:

• assessing the person’s needs, risks, capacity and consent requirements;
• preparing, maintaining and reviewing care plans, treatment plans and risk assessments;
• ensuring that any required best interests decision, advance decision, Lasting Power of Attorney, Court of Protection order, DoLS authorisation or safeguarding decision is identified and communicated appropriately;
• providing local policies, procedures, induction, supervision, delegation and escalation routes;
• meeting its own CQC registration and regulatory obligations.

{{org_field_name}} is responsible for:

• recruiting and supplying suitable workers;
• checking role-related training, competence, registration and compliance requirements;
• giving workers clear expectations about consent, capacity, safeguarding, confidentiality and escalation;
• responding to concerns, complaints, incidents or allegations involving its workers;
• cooperating with client organisations, safeguarding bodies, regulators and professional bodies where required.

6. Temporary Workers’ Responsibilities

Temporary workers must:

• seek and confirm valid consent before providing or assisting with any care, treatment, support or intervention;
• introduce themselves, explain their role and make clear what they are proposing to do;
• provide information in a way the person can understand, using the client organisation’s communication tools, interpreters or advocates where required;
• check that the person is willing to proceed at the time of the intervention;
• assume that an adult has capacity unless there is evidence to suggest otherwise;
• take all practicable steps to support the person to make their own decision before treating them as unable to decide;
• recognise that capacity is decision-specific and time-specific;
• respect the person’s right to refuse or withdraw consent, even where the worker or others consider the decision unwise;
• work only within their role, competence, training, professional registration and the client’s delegation instructions;
• follow the client organisation’s care plans, risk assessments, consent procedures and documentation requirements;
• escalate immediately to the person in charge, nurse in charge, manager, supervisor or other designated client representative where consent is unclear, refused, withdrawn or disputed;
• report serious concerns, safeguarding issues, coercion, unlawful restraint, unexplained changes in capacity or any suspected failure to obtain consent;
• document consent, refusal, withdrawal of consent, concerns and escalation in line with client procedures and {{org_field_name}}’s reporting requirements.

7. Types of Consent in Practice

7.1 Implied Consent

Implied consent is given when a client willingly cooperates with care without verbalising consent, for example:

• Offering an arm for assistance
• Nodding in agreement
• moving to assist with a dressing change.

Implied consent may be appropriate for low-risk, routine care where the person clearly understands what is being proposed and their actions clearly indicate agreement. However, temporary workers must still explain what they are about to do and check that the person is happy to proceed. Implied consent must not be relied upon where the person appears distressed, confused, reluctant, unable to understand, under pressure, or where the proposed intervention is intimate, invasive, restrictive, clinically significant or outside the person’s usual routine.

7.2 Verbal Consent

Verbal consent is appropriate where:

• The care or treatment is non-invasive and routine
• The client understands the care proposed
• The client is able to express consent clearly

Example: A client says “yes” when asked if they would like help with personal care.

Where verbal consent is obtained, the worker should record it if required by the client organisation’s procedure, particularly where the task involves personal care, medication, clinical observations, moving and handling, nutrition, hydration, intimate care or any intervention that the person has previously refused.

7.3 Written Consent

Written consent may be required where:

• the client organisation’s policy requires it;
• the intervention is invasive, intimate, high-risk or clinically significant;
• the intervention forms part of a formal treatment plan;
• there is a legal, regulatory, safeguarding or professional requirement to document consent;
• the person, their lawful representative or the client organisation requests written confirmation.

Temporary workers must not obtain written consent for procedures unless this forms part of their role, they have been authorised by the client organisation, and they are competent to explain the relevant information. Where written consent is required but has not been obtained, the worker must not proceed unless there is a clear lawful basis to do so and the matter has been escalated to the client organisation’s person in charge.

8. Capacity and Consent

The Mental Capacity Act 2005 applies to people aged 16 and over. Under the Act, temporary workers must understand and apply the following statutory principles:

• a person must be assumed to have capacity unless it is established that they lack capacity;
• a person must not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success;
• a person must not be treated as unable to make a decision merely because they make an unwise decision;
• an act done or decision made for or on behalf of a person who lacks capacity must be done or made in their best interests;
• before the act is done or the decision is made, regard must be had to whether the purpose can be achieved in a way that is less restrictive of the person’s rights and freedom of action.

Capacity must be considered in relation to the specific decision at the specific time. A person may have capacity to make some decisions but not others, and capacity may fluctuate. Temporary workers must not diagnose lack of capacity or make formal capacity decisions unless this is within their role, competence and the client organisation’s procedures.

8.1 Where a Person May Lack Capacity

If a temporary worker has reason to believe that a person may lack capacity for a specific decision, the worker must:

• pause the intervention unless urgent action is required to prevent serious harm;
• support the person as far as possible to understand, retain, use or weigh the relevant information and communicate their decision;
• check the care plan, communication plan and client instructions;
• escalate promptly to the nurse in charge, manager, supervisor or other authorised client representative;
• follow the client organisation’s Mental Capacity Act and best interests procedures;
• record observations, actions taken, who was informed and any instructions received;
• inform {{org_field_name}} where the issue is serious, repeated, disputed, safeguarding-related or may affect the worker’s assignment.

Temporary workers must not make formal best interests decisions independently unless they are authorised to do so, competent to do so and acting within the client organisation’s procedures. Where a best interests decision has already been made and recorded by the client organisation, the temporary worker must follow the care plan and escalate any concern that the decision is unclear, outdated, unsafe, disputed or not being followed.

8.2 Best Interests, Lawful Representatives and Advance Decisions

Where a person aged 16 or over lacks capacity to make a specific decision, any act or decision made on their behalf must be in their best interests and must follow the Mental Capacity Act 2005 and the client organisation’s procedures.

Temporary workers must alert the person in charge if they become aware of:

• a Lasting Power of Attorney for health and welfare;
• a Court of Protection deputy;
• an advance decision to refuse treatment;
• an advance statement of wishes or preferences;
• an Independent Mental Capacity Advocate involvement;
• a disagreement between family members, representatives or professionals;
• any concern that the care being provided may not reflect the person’s wishes, feelings, beliefs, values or best interests.

Temporary workers must not accept instructions from relatives, friends or representatives unless the client organisation has confirmed that the person has lawful authority for the relevant decision. Family members and friends should be listened to and treated respectfully, but they do not automatically have legal authority to consent on behalf of an adult who lacks capacity.

8.3 Deprivation of Liberty, Restrictions and Restraint

Temporary workers must not impose restraint, restrictions or continuous supervision unless this is lawful, necessary, proportionate, within their role and in accordance with the client organisation’s care plan, risk assessment and procedures.

Where a person lacks capacity and is subject to restrictions that may amount to a deprivation of liberty, the client organisation is responsible for ensuring that the appropriate legal authorisation is in place, such as Deprivation of Liberty Safeguards in hospitals and care homes or another lawful authorisation route where applicable.

Temporary workers must escalate immediately if:

• a person appears to be unlawfully restricted, restrained, prevented from leaving or kept under continuous supervision without clear authorisation;
• the care plan or DoLS authorisation is unclear, expired or inconsistent with the person’s presentation;
• they are asked to use restraint or restrictions that they believe are unnecessary, excessive, punitive, unsafe or outside their role;
• the person is objecting to the arrangements or appears distressed by restrictions.

Liberty Protection Safeguards have been legislated for but have not replaced DoLS in operational practice. {{org_field_name}} will review this policy when the Government implements any replacement framework.

9. Refusal or Withdrawal of Consent

A person with capacity has the right to refuse or withdraw consent at any time, even where the decision appears unwise or may place them at risk. Temporary workers must respect refusal and must not pressure, threaten, mislead, restrain or coerce the person into accepting care or treatment.

Where a person refuses or withdraws consent, temporary workers must:

• stop or pause the intervention, unless urgent lawful action is required to prevent serious harm;
• remain calm and respectful;
• check whether the person understands what is being proposed and whether communication support is needed;
• offer reasonable alternatives where appropriate and within the care plan;
• report the refusal promptly to the client organisation’s person in charge;
• document the refusal, information given, action taken and escalation completed;
• notify {{org_field_name}} where the refusal creates significant risk, is repeated, relates to safeguarding, medication, nutrition, hydration, personal care, clinical treatment or worker safety.

Temporary workers must not record a refusal as non-compliance. Records must be factual, respectful and objective.

10. Consent, Safeguarding and Serious Risk

Consent and safeguarding must be considered separately. A person with capacity may choose to refuse care, treatment or support, and that decision must usually be respected. However, temporary workers must escalate concerns where refusal, coercion, undue influence, abuse, neglect, self-neglect, exploitation or organisational pressure may place the person or others at risk of harm.

Temporary workers must report immediately to the client organisation’s person in charge and to {{org_field_name}} where:

• consent appears to have been obtained through coercion, intimidation, manipulation or restraint;
• the person appears afraid, distressed or unable to speak freely;
• a family member, visitor, staff member or other person appears to be controlling the person’s decision;
• care or treatment is being provided despite refusal or without valid consent;
• refusal of care creates a serious and immediate risk to the person or others;
• there are concerns about abuse, neglect, self-neglect, discriminatory treatment or unsafe practice.

Where emergency action is required to prevent serious harm, workers must follow the client organisation’s emergency procedures, call emergency services where necessary, and report the matter immediately.

11. Consent, Communication and Reasonable Adjustments

Temporary workers must support people to make their own decisions wherever possible. This includes making reasonable adjustments and using communication methods that meet the person’s needs.

Workers must:

• use clear, simple and respectful language;
• allow enough time for the person to understand, process information and respond;
• use the person’s preferred communication method where known;
• follow communication passports, care plans and client guidance;
• use visual aids, objects of reference, easy-read information, hearing aids, glasses, communication boards or other aids where available;
• involve interpreters, advocates or specialist communication support where required by the client organisation;
• avoid relying on family members or other informal interpreters for significant decisions unless this is appropriate, safe and authorised by the client organisation;
• recognise non-verbal communication, distress, resistance, hesitation, withdrawal or changes in behaviour as possible indicators that the person does not consent or does not understand.

Workers must not treat communication difficulty, disability, dementia, mental illness, learning disability, sensory impairment or language barriers as evidence that a person lacks capacity. The Equality Act 2010 requires non-discrimination and reasonable adjustments for disabled people.

11.1 Consent Involving Children and Young People

Where temporary workers are assigned to services involving children or young people, they must follow the client organisation’s child consent, safeguarding and parental responsibility procedures.

Young people aged 16 or 17 may be able to consent to surgical, medical or dental treatment as if they were adults, subject to the relevant legal and clinical requirements. Children under 16 may be able to consent where they have sufficient understanding and intelligence to understand fully what is proposed, commonly referred to as Gillick competence.

Temporary workers must not make independent decisions about Gillick competence, parental responsibility or disputed consent unless this is within their role, competence and the client organisation’s procedures. Any uncertainty, refusal, disagreement, safeguarding concern or significant treatment decision involving a child or young person must be escalated immediately to the client organisation’s person in charge.

12. Documentation, Confidentiality and Information Governance

Temporary workers must follow the client organisation’s record keeping procedures and any additional reporting requirements set by {{org_field_name}}.

Records must be:

• accurate, factual and completed as soon as reasonably practicable;
• respectful and free from judgemental language;
• clear about what was proposed, what information was provided and how the person responded;
• clear about whether consent was implied, verbal, written, refused or withdrawn;
• clear about any communication support, reasonable adjustments or advocacy used;
• clear about escalation, advice received and actions taken;
• signed, dated and completed in the correct client record system or document.

Temporary workers must treat all personal information as confidential and must process information in accordance with UK GDPR, the Data Protection Act 2018, client policies and {{org_field_name}}’s Data Protection and Information Governance Policy. Health information, capacity information, safeguarding information and information about disability or care needs may be special category data and must be handled securely and only shared where there is a lawful basis and a legitimate need to know.

13. Training and Competence

{{org_field_name}} will ensure, appropriate to role and assignment type, that temporary workers receive induction and refresher training or guidance on:

• consent and refusal;
• Mental Capacity Act 2005 principles;
• best interests and escalation;
• communication needs and reasonable adjustments;
• safeguarding adults and children;
• confidentiality, record keeping and information governance;
• professional boundaries and working within competence;
• client-specific procedures where these are provided by the client organisation.

Registered nurses, nursing associates and other registered professionals must maintain their own professional competence, act within their professional code and raise concerns where consent, capacity or safety standards are not met.

Temporary workers must not accept or continue an assignment where they are asked to carry out duties outside their competence, training, professional registration, role or lawful authority.

14. Director’s and Management Responsibilities

In the absence of a registered manager, the director and nominated management staff of {{org_field_name}} will:

• ensure this policy is implemented, monitored and reviewed;
• ensure workers are informed of their responsibilities on consent, capacity, refusal, safeguarding, confidentiality and escalation;
• ensure recruitment and placement processes consider role suitability, training, competence, professional registration and assignment requirements;
• ensure workers are instructed to follow client policies, care plans and escalation procedures;
• review incidents, complaints, concerns, safeguarding alerts or allegations involving consent, capacity or refusal;
• liaise with client organisations, safeguarding bodies, regulators, professional bodies or insurers where required;
• take appropriate action where a worker fails to follow this policy, including supervision, retraining, suspension from assignments, disciplinary action or referral to a professional body where appropriate;
• update this policy when legislation, statutory guidance, professional standards or client requirements change.

15. Working with Client Organisations

{{org_field_name}} will work with client organisations to support safe and lawful assignments. The client organisation remains responsible for its own regulated activity, CQC registration, care planning, consent procedures, clinical governance, supervision, delegation and service-user records.

{{org_field_name}} will:

• request sufficient assignment information to place suitably skilled and competent workers;
• inform workers that they must follow client consent, capacity, safeguarding, medication, record keeping and escalation procedures;
• encourage workers to seek local induction and clarification where duties, care plans or consent requirements are unclear;
• cooperate with client investigations, audits, safeguarding enquiries and complaints involving workers supplied by {{org_field_name}};
• take appropriate action where concerns are raised about a worker’s practice;
• share relevant information lawfully and proportionately where required for safety, safeguarding, regulatory or contractual purposes.

16. Monitoring and Continuous Improvement

The director or nominated manager will monitor implementation of this policy through:

• incident and complaint reviews;
• safeguarding concerns and outcomes;
• worker feedback and supervision records;
• client feedback;
• audit of internal reporting records where applicable;
• review of training completion and competence evidence;
• review of relevant legal, regulatory and professional updates.

Learning from incidents, complaints, safeguarding concerns, client feedback or changes in law will be used to update this policy, worker guidance, induction materials and placement procedures.

17. Policy Review

This policy will be reviewed at least annually by the director or nominated manager of {{org_field_name}}, or sooner where required by:

• changes in legislation, statutory guidance or professional standards;
• changes to the organisation’s services or operating model;
• serious incidents, complaints, safeguarding concerns or audit findings;
• feedback from workers, clients or external bodies;
• implementation of any replacement for Deprivation of Liberty Safeguards, including Liberty Protection Safeguards if brought into force.

Changes will be communicated to relevant office staff, temporary workers and, where appropriate, client organisations.

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Responsible Person: {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}
Reviewed on: {{last_update_date}}
Next Review Date: {{next_review_date}}
Copyright © {{current_year}} – {{org_field_name}}. All rights reserved.